It’s Not Nice to Lie to the Supreme Court

The decision in the census case suggests President Trump can no longer take the court for granted.

A cynic might say that with his two major decisions on the last day of the Supreme Court term a week ago, Chief Justice John Roberts saved both the Republican Party and the court — first by shutting the federal courts’ door to claims of partisan gerrymandering, a practice in which both political parties indulge but that Republicans have perfected to a high art, and then by refusing to swallow the Trump administration’s dishonest rationale for adding a citizenship question to the 2020 census.

President Trump, having placed two justices on the Supreme Court, had taken to treating the court as a wholly owned subsidiary, and not without some justification. It was the court, after all, in an opinion by Chief Justice Roberts, joined by the other four Republican-appointed justices, that saved the president’s Muslim travel ban a year ago. But the chief justice’s opinion in the census case last week blew a hole in what appeared to be a protective firewall that the president can no longer take for granted.

I’m not joining the cynics, especially now that the citizenship question is dead — or so it seemed on Tuesday, based on the Justice Department’s assertion to the federal district judge handling a companion case in Maryland that the census forms were being printed without the citizenship question. On Wednesday, a furious President Trump ordered the Justice Department to reverse course; what followed was a telephone colloquy between that federal judge, George Hazel, and the lawyers for which the word bizarre is a breathtaking understatement. “I can’t possibly predict at this juncture what exactly is going to happen,” Joshua Gardner, a Justice Department lawyer, told the judge, who gave the administration until Friday afternoon to get its story straight.

It would take a heart of stone not to feel sorry for the administration’s lawyers, faced with defending the indefensible. As they recognized 24 hours earlier, the chief justice’s opinion in fact left no wiggle room. Once the behavior of Wilbur Ross, the secretary of commerce, was called out by the Supreme Court of the United States, the president was trapped — and now his lawyers are caught in his net. Maybe they can find a way around the chief justice’s decision, but I don’t think so.

Here’s why: Once the court rejected the administration’s stated rationale as phony — or “contrived,” as Chief Justice Roberts put it more politely in agreeing with Federal District Judge Jesse Furman that improved enforcement of the Voting Rights Act was not Secretary Ross’s real motive — the administration might have tried to come up with some other politically palatable explanation. That would almost certainly have failed, because courts generally will not accept what they call “post hoc rationalizations,” explanations cooked up under pressure and after the fact. But even if such a ploy had succeeded, its very success would have proved Secretary Ross to have been a liar all along.

The citizenship question is now history, fortunately, but this whole episode is too fascinating, too important for the country and the court, to put behind us just yet. So in this column, I want to probe the census decision itself, both for what it tells us about the court and for what it might suggest about the next test of the relationship between the president and the court that he has so recently regarded as his very own. That is the question of the validity of the president’s rescission of the program known as Deferred Action for Childhood Arrivals, or DACA, the Obama-era policy that now protects the “dreamers,” some 700,000 young undocumented people brought to this country as children, from being thrown out of the only country they have ever known. The court will hear that case in its next term, and there are some striking parallels with the census case that just might leave the Trump administration empty-handed again.

But first, the census case. I’ve been obsessed with imagining whatever dark night of the soul preceded the chief justice’s last-minute decision to shift course and reject the administration’s position.

I readily admit that I have no sources for the claim I just made. I have no proof that Chief Justice Roberts initially voted with the administration and talked himself out of that position sometime during the two months that elapsed between the April argument and the June decision. But I’ve been reading Supreme Court decisions for a very long time, and the opinions that provide the holding — the chief justice’s plus the partially concurring opinion of Justice Stephen Breyer for the court’s four liberals — have all the hallmarks of judicial tectonic plates that shifted late in the day to produce an outcome that none of the players anticipated at the start.

To begin with the chief justice’s opinion: The first 22 of its 28 pages are an argument for why the decision by Secretary Ross to add the citizenship question to the census was a reasonable one that fell squarely within his authority. Noting that Mr. Ross rejected the advice of Census Bureau experts and decided to proceed despite the risk of depressing the response rate, Chief Justice Roberts writes, “That decision was reasonable and reasonably explained, particularly in light of the long history of the citizenship question on the census.”

Then suddenly, on page 23, the opinion’s tone changes as the chief justice reviews the finding by Federal District Judge Furman that Secretary Ross’s explanation for why he wanted the citizenship question in the first place was a pretext. The official story was that it would help the Department of Justice — which was said to have requested the addition of the question — to better enforce the Voting Rights Act on behalf of members of minority groups. In fact, as Judge Furman determined from the evidence, it was Secretary Ross who solicited the Justice Department’s request, and whatever the secretary’s motivation, the reason he gave wasn’t the real one.

“We are presented,” Chief Justice Roberts observes dryly, “with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision making process.” He continues:

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Justice Breyer’s opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, is almost as long as the chief justice’s. Nearly all of it reads like a dissent, arguing that Secretary Ross’s rejection of his own experts’ advice made the addition of the citizenship question unreasonable as a matter of law, “arbitrary and capricious” in the language of the Administrative Procedure Act. Only in Justice Breyer’s concluding paragraphs is there anything that reads like a concurrence: “I agree that the pretextual nature of the secretary’s decision provides a sufficient basis to affirm the District Court’s decision to send the matter back to the agency.” It’s hard to read these few paragraphs as anything other than a last-minute addition to a carefully crafted dissenting opinion, one that had rather suddenly become superfluous.

There were two other opinions filed in the case, one by Justice Clarence Thomas that was joined by Justices Neil Gorsuch and Brett Kavanaugh, and another by Justice Samuel Alito. Both disagreed vigorously with the chief justice’s bottom line. All four opinions scrupulously avoided any mention of what everybody knew: that documents brought to light in the weeks following the April 23 argument showed that the citizenship question was part of a plan not to help minority groups vote, but the opposite. The plan was to create and entrench Republican majorities in state legislatures by providing data for use if the Supreme Court gives the green light to counting only eligible voters in legislative redistricting. Conservative groups are poised to send such a case to the Supreme Court in the near future, part of a strategy to keep rapidly diversifying red states like Texas from turning blue.

There is no doubt that the justices were aware of this late-breaking development; during the days leading up to the decision, one of the plaintiff groups challenging the citizenship question had filed a brief with the court detailing the findings from the computer files of a recently deceased Republican redistricting specialist. If I’m right about the chief justice’s late-in-the-day change of heart, did these revelations play a part, even a subconscious one? That’s more speculation than even I am willing to engage in. Suffice it to say that it’s hard to imagine the administration’s litigating position undermined in a more devastating fashion.

It’s that observation that brings me to the DACA case. The court will actually hear three DACA cases, consolidated for a single argument and decision. All three are appeals by the administration of rulings that have barred it from carrying out its decision, announced in September 2017, to “unwind” the program. At issue are two Federal District Court opinions and a decision by the United States Court of Appeals for the Ninth Circuit that upheld a ruling by a federal district judge in San Francisco, William Alsup. The opinions differ slightly, but all found that the administration’s termination of DACA for the reason the administration has provided would violate the Administrative Procedure Act.

Here’s where the administration is caught. Its stated reason, as expressed by the acting secretary of homeland security on orders from the attorney general at the time, Jeff Sessions, was that DACA lacked statutory authority and was unconstitutional. At the heart of the administration’s appeal is the assertion that the federal courts lack jurisdiction to interfere with the “Executive Branch’s authority to revoke a discretionary policy of nonenforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

That is a very difficult position for the administration to maintain because it presents to the courts a question not of policy but of law. The administration would have a strong case for judicial deference if it described its rejection of DACA as a matter of enforcement priorities that differ from those of the previous administration. But by claiming that “the law is making us do it,” the administration is serving up the federal judges a question at the heart of their jurisdiction: What does the law require?

As Judge John D. Bates of the Federal District Court in Washington observed in his opinion, the administration provided only a few sentences of legal analysis to back up its claim. “This scant legal reasoning was insufficient to satisfy the department’s obligation to explain its departure from its prior stated view that DACA was lawful,” Judge Bates explained.

So the question is why the administration failed to offer a policy-based explanation, one that might well have persuaded the lower courts and eased its path to the Supreme Court. One reason might have been to protect the president, who declared shortly after his inauguration that “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy.” The reason for going after the dreamers had therefore to be based on a claim of pure law, not a change of heart.

A more cynical explanation — and here I’ll indulge in the cynicism from which I refrained at the beginning of this column — is that in claiming that revoking the policy is required by law and not preference, the administration seeks to avoid accountability for a position that, if it were to prevail, would predictably cause economic disruption and public dismay.

Many policy positions predictably affect hundreds of thousands or millions of people; had Republicans succeeded in gutting the Affordable Care Act, for example, millions of people would have been thrown back into the health care jungle. But we don’t know their names. The DACA recipients, by contrast, have names that are known, not only to the Department of Homeland Security but to their schools, their employers, their communities. One dreamer recently received a Rhodes Scholarship and will not be able to return to the United States from Oxford if the administration wins its case. Others with less exalted achievements are simply getting their degrees, holding down jobs, paying their taxes, raising some 200,000 American-born children and going about their lives in the country they regard as their own.

The dreamers will still be here next April, when the census takers come around; the Supreme Court decision will almost certainly not be issued by then. They will be counted along with the rest of us in the grand decennial enumeration that the Constitution’s framers decreed. And a year from now, we’ll know whether the court that could see through one Trump administration strategy is willing and able to do it a second time.

Looks Like the Trump Administration Lied About the Census

The administration said it needed citizenship data to protect voting rights. New documents tell another story.

A trove of documents brought to the attention of the Supreme Court on Thursday makes it hard to see the Trump administration’s efforts to include a citizenship question on the 2020 census as anything but a partisan power grab.

The court will decide before the end of June whether Wilbur Ross, the commerce secretary, was justified under federal law in adding the citizenship question — a move that would nearly certainly lead to a serious undercounts of Hispanics and in immigrant-rich communities. During a hearing on the case in April, it appeared that a majority of the justices was prepared to allow the administration to include the question.

But the explosive new evidence disclosed by the plaintiffs in the case ought to give the justices pause about the ruling they’re about to issue. This is one of the most consequential cases before the court this term. The decision on it will have far-reaching effects on the distribution of political power and federal funding across the country for the next decade and beyond.

According to the plaintiffs who brought the New York challenge to the citizenship question, Mark Neuman, a key adviser to Mr. Ross on census issues, and John Gore, a Justice Department official who oversees voting rights enforcement, gave false or misleading testimony during the course of the litigation about why the Trump administration was so intent on including a citizenship query in the decennial count.

The files show that he wrote to President Trump’s transition team to tack the question onto the census and helped to write a draft Justice Department letter claiming that the question was needed to enforce the 1965 Voting Rights Act. That was the pretext the administration later used to justify its decision to include it — and which Judge Furman rejected.

Judge Jesse Furman of Federal District Court, the first of three judges to strike down the citizenship question, has asked the Justice Department to respond to the charges and has scheduled a hearing for next week.

Lawyers challenging the citizenship question told Judge Furman on Thursday that, according to a 2015 study written by Mr. Hofeller, adding a citizenship question would create “a structural electoral advantage” that would benefit Republicans and non-Hispanic whites. The documents were unearthed last year by Mr. Hofeller’s estranged daughter, who found them among his effects on four external hard drives and 18 thumb drives.

The files show that he wrote to President Trump’s transition team to tack the question onto the census and helped to write a draft Justice Department letter claiming that the question was needed to enforce the 1965 Voting Rights Act. That was the pretext the administration later used to justify its decision to include it — and which Judge Furman rejected.

Mr. Neuman admitted in a deposition last year that Mr. Hofeller was the first person to suggest the addition of the citizenship question. The plaintiffs accuse Mr. Neuman and Mr. Gore of providing false testimony in their explanations for this whole charade.

“The new evidence demonstrates a direct through-line from Mr. Hofeller’s conclusion that adding a citizenship question would advantage Republican and non-Hispanic whites” to the rationale advanced by the Justice Department, the lawyers wrote.

In a civil rights case, this would be powerful evidence that the Trump administration took the action for the express purpose of disadvantaging minorities. This, however, is a case dealing with administrative rules, which require officials to act in good faith and offer legitimate reasons for advancing a particular policy goal.

An accurate and fair count of everyone in America isn’t just any policy goal. There’s much at stake with the 2020 census — from the future of the next redistricting cycle to how billions of dollars in federal funding will be allocated. The Supreme Court should see this new evidence for what it seems to reveal: A blatant attempt to rig a constitutional mandate.

Nancy Pelosi’s Great Wall of Resistance

Trump had got himself into a major jam. One problem was that he hadn’t expected to win the election, which meant that he could promise anything without worrying about whether he could deliver. In early January, The New York Times reported that Trump’s longtime former adviser, the now-indicted Roger Stone, suggested using the idea of constructing the wall to help the professional builder remember to bring up immigration, which was to be a major issue for him, at his campaign rallies.

The trick worked too well. Trump came to rely on the wall to bring rally audiences alive. “And who will pay for the wall?” he would shout to his audience. “Mexico!” the crowds would respond in unison. Of course, Mexico had no intention of paying for such a wall.

.. Pelosi clearly flummoxes Trump. He has never had to deal with a woman as smart, dignified, and tough as she is. She is his only known political rival for whom he has not been able to devise a withering nickname (as in “crooked Hillary”): “Nancy, as I call her,” he said, as he began to weaken against her, eliciting mockery in much of Washington (and on Twitter).

.. Trump’s immaturity and abysmal judgment were on display when, in his December meeting with Pelosi and Schumer, he blurted out, “I am proud to shut down the government for border security.” He added: “I will take the mantle. I will be the one to shut it down.” Schumer visibly struggled not to laugh at Trump’s monumental blunder. Anyone minimally well informed knows that the person recognized as causing a shutdown loses in the opinion polls. Trump had trapped himself.

Every time there’s a government shutdown, Americans learn the same three things: that federal workers – derisively called “bureaucrats” – are human beings with families, illnesses, and other issues; that most don’t live in the Washington area, but are spread around the country; and that government contractors get hit, too – not Boeing and the like, but building cleaners, cafeteria workers, and so forth. So, in addition to the 800,000 or so government workers – some furloughed, some required to work without pay – an estimated one million others were also directly affected. Moreover, restaurants and other small businesses in the vicinity of government facilities were hurt by a lack of business. Stories of the shutdown’s harsh impact quickly began to dominate the news.

As the shutdown dragged on, politicians from both parties became increasingly restive. Republicans from areas with numerous government workers, many of them part of Trump’s base, became impatient. Many Democrats worried that though Trump was getting most of the blame for the shutdown, Pelosi’s intransigence would begin to backfire on them. But Pelosi held firm, counseling patience and explaining that as soon as Democrats offered Trump money for his wall, they would be playing his game and would lose their argument that the government must not be shut down because of a policy disagreement.

After government workers went without their first paycheck, the politically harmful anecdotes started rolling in: a woman who would have to decide between chemotherapy and paying the rent; a guard at the Smithsonian Institution threatened with eviction; parents who couldn’t explain to their children why they weren’t working and had no money.

Administration billionaires, like Commerce Secretary Wilbur Ross, said lunkheaded things (such as, Why can’t they get a loan?). Some employees who were forced to work without pay, in particular air traffic controllers, called in sick. FBI employees, among others, were lining up at food banks. Trump’s approval ratings dropped. Airline delays became the norm. Finally, Senate Majority Leader Mitch McConnell, who above all wants to keep the Senate in Republican hands, warned Trump that their side was losing the public-relations war.

As is his wont, Trump tried to camouflage his retreat. In a Rose Garden speech, he rambled on with familiar misleading statistics about alleged crimes committed by illegal immigrants and lied about how drugs enter the country – omitting that most come through legal ports of entry in cars, trucks, and trains rather than through openings along the southern border.

Pelosi had outmaneuvered Trump. Suddenly, the president didn’t seem so dangerous; he had tried various stratagems:

  1. a nationally broadcast speech from the Oval Office that even he knew was leaden;
  2. a visit to the southern border that even he didn’t think would change any minds; threats to build his “wall” – which by now had become steel slats –
  3. by decreeing a national emergency (which would probably land in the courts), though virtually no one agreed that there was an emergency. In fact, entries into the US through the southern border are lower than they have been in years.

As it happens, on that Friday night when Trump buckled, I was at a restaurant where Pelosi and her husband, Paul, were dining with another couple. When the House Speaker left her table, customers and staff alike applauded her. A waitress standing beside me was nearly in tears. She choked out, “We need someone who will fight for us.”